New rules that came into force this month mean health and social care providers in Scotland must now adhere to a formal procedure when someone they’re responsible for suffers unintentional harm as a result of the treatment they’ve received.
The Duty of Candour regulations are designed to increase transparency and eliminate the disparate incident reporting procedures previously used by organisations registered with Scotland’s Care Inspectorate. In practice, the regulations stipulate providers have to produce an annual incident report and undertake a prescribed apology process in the unfortunate event they make a mistake.
Now, it could be argued that standardising this procedure will create an unnecessary administrative and financial burden for providers that already have a satisfactory framework in place. Many have one set by their professional body’s code of conduct. But, leaders in organisations that fall into this bracket should appreciate that the change offers benefits too.
The new procedure allows public bodies that have made a mistake to apologise to the wronged party without admitting negligence, or a breach of duty. This means staff who are involved in, or aware of an incident will be less reluctant to sweep it under the rug, the person who has suffered harm receives a proper apology and support, and the circumstances of what happened can be comprehensively investigated and learned from. Legal action, or penalties from regulators could still follow if appropriate, but because the incidents are being properly logged and handled correctly, mistakes are less likely to be repeated and the number of incidents that are expedited in this way could ultimately be reduced.
Affected providers must now ensure staff are properly trained on the change and that they are operationally prepared to satisfy the new reporting requirements. They must also be aware of an interesting variation in the new procedure and the established system in England it draws from. In Scotland, employees directly involved in any incident cannot engage with the wronged party during the process. They must be represented by a colleague, which makes the importance of training across an entire organisation on the obligations even more important north of the border.
With this in mind, here are the steps to be followed when an incident occurs, as outlined by the new regulations:
1. When an organisation becomes aware of an incident that falls under Duty of Candour it must start the procedure as soon as it is reasonably practical. This begins with corresponding directly with the affected individual. In the event this individual cannot correspond independently, the provider must reach out to the person who is acting on their behalf.
2. The individual must be notified within a month of the incident being identified. This notification should include an account of the incident and an explanation of next steps.
3. The individual should be offered a written apology and invited to attend a meeting to discuss the incident. The objective here is to keep the individual informed, allow them to ask questions and give them the opportunity explain what they think happened.
4. After the meeting, the individual must be provided with a full account of the incident and relevant information on any legal, or review procedures that will now take place as a result.
5. A full review of the circumstances that led to the incident must be completed within three months of it occurring, with a copy provided to the individual. The review should detail what action is going to be taken to improve the origination’s service on the back of the incident.
6. The review must be must be stored with all relevant documentation and correspondence and included in the organisation’s annual incident report.
7. The organisation must offer details of ongoing support services to both the individual affected by the incident and the staff involved.
If providers follow these steps, they will stay on the right side of the regulations, ensure staff and the individual affected are properly supported and have an opportunity to review and improve areas of their service so mistakes aren’t repeated.
Pamela Stevenson is a partner at Weightmans LLP in Glasgow
